B-165131, OCT. 9, 1968

B-165131, OCT. 9, 1968

TO VIBRODYNE, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 26, AND LETTER OF AUGUST 28, 1968, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO SOLICITATION 1321, ISSUED BY THE POST OFFICE DEPARTMENT, BUREAU OF FACILITIES. THE SOLICITATION, ISSUED JUNE 14, 1968, ADVERTISED FOR THE PURCHASE OF A VIBRATORY DEBURRING AND FINISHING SYSTEM TO REPLACE A SIMILAR SYSTEM WHICH HAD BEEN IN USE FOR 15 YEARS AND FOR WHICH SPECIFICATIONS WERE NOT AVAILABLE. THEREFORE, AND SINCE THE SYSTEM IS NOT A RECURRING PROCUREMENT ITEM, IT WAS DETERMINED THAT THE MOST ECONOMICAL MEANS OF ADVERTISING THE REQUIREMENT WOULD BE ON A "BRAND NAME OR EQUAL" BASIS.

PURSUANT TO THE PROVISIONS OF FEDERAL PROCUREMENT REGULATIONS (FPR) 1- 1.307-4, THE SOLICITATION SET FORTH THE NECESSARY SPECIFICATIONS AND REQUIRED SALIENT FEATURES OF THE IDENTIFIED BRAND NAME ITEM, IN PERTINENT PART, AS FOLLOWS: "TWO (2) MODEL E-6 ULTRAMATIC VIBRATORY FINISHING MACHINE OR EQUAL. SALIENT CHARACTERISTICS LISTED ARE ESSENTIAL REQUIREMENTS FOR THE MACHINE DESCRIBED. SYSTEM SHALL CONTAIN TWO (2) VIBRATORY DEBURRING AND FINISHING MACHINES AS FOLLOWS: "ACTUAL VOLUME OF TUB SHALL BE NO LESS THAN 7.4 CUBIC FEET WITH WORK CAPACITY OF 6 CUBIC FEET.

* * * * * * * "TUB SHALL HAVE AN END DRAIN FOR CONTINUOUS DRAIN OF CONTAMINATED LIQUIDS AND FOR RINSING PARTS AND MEDIA WHILE MACHINE IS RUNNING. THE OPPOSITE END OF TUB SHALL BE EQUIPPED WITH A MECHANICAL PLUG TYPE DOOR FOR DISCHARGE OF MEDIA AND PARTS. "EACH MACHINE SHALL BE POWERED BY A 3 H.P., 208 VOLT, 3 PHASE, 60 CYCLE TOTALLY ENCLOSED MOTOR WITH MECHANICAL VARIABLE SPEED CONTROL ALLOWING SPEEDS FROM 1000 TO 2000 VPM PRODUCING AN ORBITAL MOTION OF .250".

* * * * * * * "TWO (2) MODEL S-2-6 ULTRAMATIC VIBROGRATOR SCREEN SEPARATOR OR EQUAL. SALIENT CHARACTERISTICS LISTED ARE ESSENTIAL REQUIREMENTS FOR THE MACHINE DESCRIBED.

* * * * * * *"ONE (1) MODEL S-L-C-2 ULTRAMATIC SLING CONVEYOR OR EQUAL. SALIENT CHARACTERISTICS LISTED ARE ESSENTIAL REQUIREMENTS FOR THE MACHINE DESCRIBED.

* * * * * * * "ONE (1) MODEL FT-7 ULTRAMATIC FLOW-THRU SYSTEM OR EQUAL. SALIENT CHARACTERISTICS LISTED ARE ESSENTIAL REQUIREMENTS FOR THE MACHINE DESCRIBED.'

THE SOLICITATION ALSO REQUIRED THE DELIVERY OF AN AUTOMATIC OIL MIST LUBRICATION SYSTEM FOR THE VIBRATORY DEBURRING AND FINISHING MACHINES, A MASTER ELECTRICAL CONTROL PANEL, AND A PARTS CLEANING AND RUST INHIBITING SYSTEM AS ILLUSTRATED IN A DRAWING ATTACHED THERETO (NO. 12-1520).

IN ADDITION, THE SOLICITATION CONTAINED A CLAUSE IN ATTACHMENT POST OFFICE DEPARTMENT (POD) NOTICE 70 SUBSTANTIALLY IDENTICAL TO THE CLAUSE REQUIRED BY FPR 1-1.307-6 (A), INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE, AND WAS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WOULD BE SATISFACTORY, AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED FOR AWARD IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE "EQUAL" IN ALL "MATERIAL" RESPECTS TO THE REFERENCED BRAND NAME PRODUCT. IN THE LATTER REGARD, CLAUSE 32 (C) "BRAND NAME OR EQUAL" OF POD NOTICE 70, APPENDED TO THE SOLICITATION, ADVISED PROSPECTIVE BIDDERS THAT:

"/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN -EQUAL- PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY.'

IT APPEARS THAT ONLY TWO BIDS WERE RECEIVED UNDER THE INVITATION. ONE, FROM VIBRODYNE IN THE TOTAL AMOUNT OF $20,877, AND THE OTHER, FROM THE ULTRAMATIC EQUIPMENT COMPANY FOR $28,480. A REVIEW OF YOUR BID BY THE COGNIZANT ACTIVITY WITHIN THE DEPARTMENT RESULTED IN A RECOMMENDATION THAT YOUR BID BE REJECTED BECAUSE THE OFFERED SYSTEM WAS NOT IN FULL COMPLIANCE WITH THE ADVERTISED SPECIFICATIONS AND SALIENT FEATURES OF THE BRAND NAME ITEM AND WAS, THEREFORE, NONRESPONSIVE. IT IS REPORTED THAT YOUR BID WAS REJECTED FOR THE FOLLOWING REASONS: "PAGE 5 OF THE SOLICITATION SPECIFIED THAT THE TWO VIBRATORY FINISHING MACHINES BE POWERED BY A 3 H.P., 208 VOLT, 3 PHASE, 60 CYCLE TOTALLY ENCLOSED MOTOR WITH MECHNICAL VARIABLE SPEED CONTROL ALLOWING SPEEDS FROM 1000 TO 2000 VPM PRODUCING AN ORBITAL MOTION OF .250". WHEREAS, VIBRODYNE'S RESPONSE OFFERS TWO MACHINES POWERED BY ELECTROMAGNETS UTILIZING ADJACENT ELECTRONIC EQUIPMENT. "THE VIBRATORY TUB CAPACITY OFFERED BY VIBRODYNE, INC., IS LESS THAN THAT SPECIFIED BY SOLICITATION NO. 1321. SPECIFICATIONS REQUIRE A TUB WITH ACTUAL VOLUME OF 7.4 CUBIC FEET HAVING WORK CAPACITY OF 6 CUBIC FEET, WHEREAS THE LIMITED INFORMATION SUBMITTED BY VIBRODYNE, INC. INDICATED THEIR ACTUAL CAPACITY TO BE 6 CUBIC FEET WHICH IN TURN WOULD PROVIDE LESS WORK CAPACITY THAN THAT REQUIRED. ,THE TUB ON THESE SAME MACHINES IS ALSO OFFERED WITH THE DRAIN AND DISCHARGE DOOR COMBINATION MOUNTED AT ONE END RATHER THAN THE SPECIFIED CONDITION OF HAVING THE DRAIN ON ONE END AND THE DISCHARGE DOOR ON THE OPPOSITE END.

* * * * * * * "SUFFICIENT INFORMATION WAS NOT SUPPLIED IN REGARD TO THE TWO (2) MODEL S-2-6 ULTRAMATIC VIBRAGRATOR SCREEN SEPARATORS AND THE ONE (1) MODEL S-L-C-2 ULTRAMATIC SLING CONVEYOR ON PAGE 6 OF THE SUBJECT SOLICITATIONS, ACCORDINGLY IT MUST BE CONCLUDED, THAT THE SPECIFIED MODEL IS OFFERED BY VIBRODYNE, INC., OTHERWISE THE -BRAND NAME OR EQUAL- CLAUSE 32, PAGE 4, POD NOTICE 70, DATED MARCH 1967 HAS BEEN BREACHED, RENDERING THE BID NON-RESPONSIVE. "VIBRODYNE, INC. FAILED TO OFFER ONE (1) AUTOMATIC OIL MIST LUBRICATION SYSTEM FOR THE VIBRATORY MACHINE, AS SPECIFIED ON PAGE 7, SINCE THE PARTICULAR MACHINE THEY PROPOSE TO SUPPLY DOES NOT USE BEARINGS. "MASTER ELECTRICAL CONTROL PANEL AS SPECIFIED ON PAGE 7 IS OFFERED BY VIBRODYNE, INC., HOWEVER, INSUFFICIENT INFORMATION IS FURNISHED WHEREBY WE COULD EVALUATE THE OFFERING OF -POWER BY ELECTROMAGNETS REQUIRING ELECTRONIC EQUIPMENT.- "NO INFORMATION WAS SUPPLIED BY VIBRODYNE, INC. RELATIVE TO (1) PARTS CLEANING AND RUST INHIBITING SYSTEM. "INSUFFICIENT INFORMATION WAS SUPPLIED BY VIBRODYNE INC., IN DESCRIBING THEIR PROPOSED -EQUAL- TO THE SPECIFIED FLOW-THRU SYSTEM AS SHOWN ON PAGE 7 AND 8 OF SOLICITATION NO. 1321.'

YOUR LETTER OF AUGUST 28 PROTESTED THE REJECTION OF YOUR BID AND THE AWARD OF A CONTRACT TO ANY OTHER FIRM ON THE BASIS THAT YOUR BID WAS LOW BY $7,603, AND THAT IT WAS, IN FACT, RESPONSIVE SINCE WITH TWO EXCEPTIONS YOU INTENDED TO SUPPLY THE SPECIFIED BRAND NAME PRODUCTS. ONE OF THE TWO EXCEPTIONS YOU NOTE WAS WITH REFERENCE TO THE REQUIREMENT FOR A DEBURRING MACHINE AND YOU ALLEGE IN THIS RESPECT THAT YOU INTENDED TO SUPPLY VIBRODYNE DEBURRING MACHINES WHICH ARE THE FUNCTIONAL EQUIVALENT OF THE SPECIFIED BRAND NAME ITEM. IN ADDITION, AS TO THE REQUIREMENT FOR ONE "MODEL FT-7 ULTRAMATIC FLOW-THRU SYSTEM OR EQUAL," YOU CONTEND THAT THE SPECIFIED BRAND NAME ITEM IS NO LONGER AVAILABLE FROM THE MANUFACTURER AND THAT INSUFFICIENT TIME WAS ALLOWED TO ,DESIGN, DEVELOP AND PRODUCE A SUITABLE PIECE OF EQUIPMENT IN LIEU OF THE NAMED MODEL FT-7.' YOU CONTEND, THEREFORE, THAT IF THE DEPARTMENT WAS NOT INITIALLY SATISFIED WITH YOUR OFFERED "OR QUAL" PRODUCT YOU SHOULD HAVE BEEN PROVIDED WITH MORE DETAILED PERFORMANCE OR PRODUCTION SPECIFICATIONS OR AN ALTERNATE COMMERCIALLY AVAILABLE ACCEPTABLE ITEM.

THE STATUTE GOVERNING PROCUREMENT BY FORMAL ADVERTISING BY THE CIVILIAN AGENCIES OF THE GOVERNMENT, 41 U.S.C. 253 (A), PROVIDES THAT SPECIFICATIONS AND INVITATION FOR BIDS SHALL PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT NECESSARY TO MEET THE REQUIREMENTS OF THE PROCURING AGENCY, AND THAT AWARD SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

CONSISTENT WITH THE CITED STATUTORY AUTHORITY, FPR 1-1.307-2 REQUIRES THAT PURCHASE DESCRIPTIONS CLEARLY AND ACCURATELY SET FORTH THE TECHNICAL REQUIREMENTS OF THE ITEM TO BE PROCURED, AND FPR 1-2.301 (A) PROVIDES THAT TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

WITH RESPECT TO "BRAND NAME OR EQUAL" PROCUREMENTS, FPR 1-1.307-4 (B) PROVIDES THAT SUCH PURCHASE DESCRIPTIONS SHALL SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT, AND FPR 1-1.307-7 (A) PROVIDES THAT BIDS OFFERING PRODUCTS WHICH DIFFER FROM THE REFERENCED BRAND SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN ACCORDANCE WITH THE TERMS OF THE CLAUSE IN FPR 1-1.307-6 (A) (2) THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED AND THAT BIDS SHALL NOT BE REJECTED BECAUSE OF "MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.' HOWEVER, WHERE, AS HERE, THE CONTRACTING AGENCY, IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, GOES BEYOND THE MAKE AND MODEL OF THE BRAND NAME AND SPECIFIES PARTICULAR DESIGN FEATURES, WE HAVE HELD THAT SUCH FEATURES MUST BE PRESUMED TO HAVE BEEN REGARDED AS MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT, AT LEAST AT THE TIME THE SPECIFICATIONS WERE DRAWN AND BIDS SOLICITED. THEREFORE, A PRODUCT WHICH DOES NOT CONFORM TO THE PARTICULAR DESIGN FEATURES SPECIFIED IS NOT "EQUAL IN ALL MATERIAL RESPECTS" TO THE REFERENCED BRAND NAME PRODUCT, NOTWITHSTANDING IT MIGHT BE FOUND SUITABLE FOR THE INTENDED USE.

WE HAVE OFTEN OBSERVED THAT THE DRAFTING OF PROPER SPECIFICATIONS, INCLUDING THE USE OF "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS, TO MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT, AND THE FACTUAL DETERMINATION WHETHER ANY PRODUCT OFFERED THEREUNDER CONFORMS TO THOSE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING ACTIVITY. 47 COMP. GEN. 409. MOREOVER, IN THE ORDERLY CONDUCT OF ITS BUSINESS, THE GOVERNMENT AS A BUYER MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE ITS DISCRETIONARY AUTHORITY TO PRESCRIBE ITS NEEDS WITH ONE OF ITS POTENTIAL SUPPLIERS WHO IS UNABLE TO ADAPT A PRODUCT TO THE NEEDS OF THE GOVERNMENT.

IN THE PRESENT CASE IT IS CLEAR THAT THE SYSTEM YOU OFFERED IN RESPONSE TO THE SOLICITATION VARIED SIGNIFICANTLY FROM SEVERAL OF THE SPECIFIED SALIENT CHARACTERISTICS OF THE REFERENCED BRAND NAME PRODUCT AND THAT THE DEPARTMENT WAS UNABLE, IN OTHER INSTANCES, TO EVALUATE YOUR OFFERED SYSTEM AGAINST THOSE CHARACTERISTICS BECAUSE YOU FAILED TO PROVIDE SUFFICIENT INFORMATION WITH YOUR BID AS TO THE EQUALITY OF YOUR OFFERED SYSTEM WITH THE BRAND NAME PRODUCT. IN THESE CIRCUMSTANCES, THE ACCEPTANCE OF YOUR BID COULD ONLY HAVE BEEN ACCOMPLISHED BY A WAIVER OF THE ADVERTISED SPECIFICATIONS AND BY PERMITTING YOU TO COMPLETE AND CLARIFY YOUR BID AFTER BID OPENING. SINCE BOTH OF THESE ACTIONS WOULD HAVE BEEN PATENTLY IMPROPER UNDER THE LONG ESTABLISHED RULES GOVERNING THE ADVERTISED PROCUREMENT OF SUPPLIES UNDER SOLICITATIONS EMPLOYING "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS, WE ARE OF THE OPINION THAT THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR LOW BID WAS NONRESPONSIVE TO THE TERMS AND CONDITIONS SET FORTH IN THE SOLICITATION -- AND THEREFORE INELIGIBLE FOR CONSIDERATION FOR AWARD -- WAS PROPER, AND NOT SUBJECT TO QUESTION BY OUR OFFICE. 47 COMP. GEN. 409; B-162475, MARCH 19, 1968.